Decision Date: 07/31/95 Archive Date:
08/03/95
DOCKET NO. 93-17 971 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Philadelphia, Pennsylvania
THE ISSUE
Entitlement to service connection for a psychiatric
disability, classified as bipolar disorder.
REPRESENTATION
Appellant represented by: Michele N. Siekerka, Attorney
WITNESSES AT HEARINGS ON APPEAL
Appellant, his brother Harold, Joseph G. Brennan, John H.
Pichon, James M. Taylor, and David A. Grady, Psy.D.
ATTORNEY FOR THE BOARD
R. P. Harris, Counsel
INTRODUCTION
The appellant had active service from October 1952 to
September 1954. By a decision in January 1987, the Board of
Veterans' Appeals (Board) denied service connection for a
psychiatric disability other than a post-traumatic stress
disorder. This matter came before the Board on appeal from
a November 1992 rating decision of the Philadelphia,
Pennsylvania, Regional Office (RO), which determined that
new and material evidence had been submitted to reopen the
claim of service connection for a psychiatric disability,
classified as manic-depressive illness (bipolar disorder),
but denied service connection for a psychiatric disability,
to include post-traumatic stress disorder, on the merits.
During a hearing on appeal before a member of a section of
the Board in October 1993, his representative expressly
withdrew the subissue of service connection for a post-
traumatic stress disorder. In a May 11, 1994 decision, the
Board denied service connection for a psychiatric
disability, classified as bipolar disorder. Thereafter, the
appellant appealed the Board's decision to the United States
Court of Veterans Appeals (Court).
In March 1995, the Secretary of the Department of Veterans
Affairs (VA) and the appellant filed a joint motion for
remand with the Court. By order rendered March 31, 1995,
the Court granted the joint motion for remand, vacated the
Board's May 11, 1994 decision, and remanded the case to the
Board for compliance with the instructions in the joint
motion. [citation redacted].
REMAND
The Board, in its May 11, 1994 decision, had determined that
(1) appellant had listed numerous physicians and medical
facilities which had treated him, (2) the VA had not
attempted to obtain such clinical records, (3) there had
been no indication that these records were necessarily
relevant to the issue on appeal, since the majority of the
alleged treatment occurred many years after service, (4)
appellant had testified during hearings on appeal that
physicians who he claimed provided him treatment in the
1950's, proximate to service, were deceased, and (5) since
these physicians were deceased, their records would likely
prove unavailable. The March 1995 joint motion for remand,
however, stated that VA had breached its statutory duty to
assist the appellant, by not seeking to obtain such records,
and that this required that the case be remanded to attempt
to obtain them.
In this regard, the March 1995 joint motion for remand
referred to appellant's allegation that he was treated by 37
physicians at 12 hospitals since service. Subsequent to
that March 1995 joint motion for remand, appellant's
attorney, in a June 1995 statement, requested that specific
service medical and postservice clinical records be
obtained. While the record indicates that RO has sought and
obtained his service medical records, another attempt is
deemed warranted, in light of his attorney's request.
Appellant contends that during service, he experienced
psychiatric symptomatology including religious delusions,
anxiety, depression, fatigue, and insomnia for which he was
treated; and that the VA has failed to properly assess the
probative value of numerous lay statements and private
medical opinions which indicate that his inservice
psychiatric symptomatology represented the initial
manifestations of a bipolar disorder. During a December
1992 hearing, David A. Grady, Psy.D., a private clinical
psychologist, clearly indicated that he had relied upon
statements by appellant and others as to the onset and
nature of appellant's psychiatric symptoms. See December
1992 hearing transcript, at T.42. Statements dated in May,
September, and October 1993 from physicians and a nurse
(appellant's sister) opine that appellant's bipolar disorder
had its onset in service. More recently, in a June 1995
statement, Kenneth J. Barber, Jr., Ph.D., a private
psychologist, opined that appellant's current bipolar
disorder had its onset in service. However, it is unclear
whether these individuals reviewed the entire evidentiary
record, including the actual service medical records, in
rendering their opinions. It appears that additional
medical clarification as to the etiology of appellant's
bipolar disorder might prove beneficial in resolving this
point of controversy. Colvin v. Derwinski, 1 Vet.App. 171
(1991).
With regard to another matter, the board member who chaired
the appellant's personal hearing on appeal in October 1993
has subsequently left the Board, and appellant has not been
offered the option of either choosing to be scheduled for
another hearing, or proceeding to appellate review of the
claim based on the written transcript of the hearing that
was conducted. See 38 U.S.C.A. § 7102(b) (West 1991).
Accordingly, the case is REMANDED for the following:
1. The RO should contact appellant to offer him the option
of either choosing to be scheduled for another hearing, or
proceeding to appellate review of the claim based on the
written transcript of the hearing that was conducted in
October 1993. If he indicates that he does not desire
another personal hearing but wants appellate review of the
claim based upon the written transcript of the October 1993
hearing, this should be expressly recorded in the claims
folder. If he indicates a desire for another hearing, then
appropriate action should be taken.
2. The RO should request the service department to obtain
any additional service medical records that may be
available, including but not limited to, any records of
appellant's treatment at: a dispensary in Pusan, Korea
(Detachment A, Korea Military Advisory Group, Provisional
8202d or 8039th, A.U., Korea), Tachikowa Airbase, Tokyo,
Japan, and Fort George G. Meade, Maryland; and associate
these records with the claims folder. In the event that
records are unavailable, this should be noted in writing in
the claims folder. The RO should request the National
Personnel Records Center (NPRC) to state in writing whether
it has searched all applicable secondary sources for
documentation of any psychiatric treatment the appellant may
have received during service, including but not limited to,
sick books and morning reports. If NPRC has not searched
alternative sources, the reason should be stated for the
record. If the reason is that NPRC is unable to search
alternative sources without a completed "Form 13055," then
the RO should request appellant to complete and submit this
form. In the event that NPRC has not searched alternative
sources and appellant has submitted this form or it is
possible to search without this form from appellant, then
this should be done, and the measures undertaken should be
specifically recorded.
3. The RO should contact appellant and request him to
provide any relevant clinical records he may have in his
possession, as well as the complete names and addresses of
any physicians or medical facilities which have provided
relevant psychiatric treatment, particularly psychiatric
treatment rendered proximate to service. All available,
actual clinical records (as distinguished from physicians'
statements based upon recollections of previous treatment)
of appellant's psychiatric treatment should be obtained from
the specified health care providers, including but not
limited to, the following health care providers at their
last known addresses of record: Albert M. Sarkessian, D.O.,
6412 Rising Sun Avenue, Philadelphia, Pennsylvania 19111;
Jeffrey K. Kohn, M.D., 503 Elkins Avenue, Elkins Park,
Pennsylvania 19117; Frank W. Ginn, Ph.D., Joanne Piotta, and
Nancy Wise, c/o Northeast Community Center for Mental
Health/Mental Retardation, Roosevelt Boulevard and Adams
Avenue, Philadelphia, Pennsylvania 19124; Dr. Barry Getzoff,
6101 Rising Sun Avenue, Philadelphia, Pennsylvania 19111;
Dr. G. Russell Atlanson (or Atkinson), 1016 Warring Road,
Drexel Hill, Pennsylvania 19062; Kenneth J. Barber, Jr.,
Ph.D., James M. Delaplane, M.D., Dr. Doeff, and David A.
Grady, Psy.D., c/o Friends Hospital, 4641 Roosevelt
Boulevard, Philadelphia, Pennsylvania 19124-2399; Bijan
Etemad, M.D., c/o Mt. Sinai Hospital, Fourth and Reed
Streets, Philadelphia, Pennsylvania 19147; Dr. Kryston, 301
South 8th Street, Philadelphia, Pennsylvania 19106; Dr.
Dominic Corrigan, York Road, Abington, Pennsylvania; Dr.
Wilson, Yardley Medical Center, Yardley, Pennsylvania; Drs.
M. Brennan, Michael Avalon, and Valentine; Drs. Jacob and
Joseph Gordon, Broad and Wyoming Streets, Philadelphia,
Pennsylvania; Drs. Paul Steingard and Riebsein, c/o
Metropolitan Hospital, Philadelphia, Pennsylvania; Dr.
Millman, Willingboro, New Jersey; Dr. Collier, 9th and
Luzerne Street, Philadelphia, Pennsylvania; Dr. Joseph
Pedito, 12301 Medford Road, Philadelphia, Pennsylvania; Drs.
Richard Bedford and Robert Smith, 2998 Welsh Road,
Philadelphia, Pennsylvania (c/o Holy Redeemer Hospital); Dr.
Leroy Purcell, Hershesville, Pennsylvania; The Horsham
Clinic, 722 East Butler Pike, Ambler, Pennsylvania 19002-
2398; The Fairmont Institute, Pennsylvania; Friends
Hospital, 4641 Roosevelt Boulevard, Philadelphia,
Pennsylvania 19124-2399; Abington Hospital, Abington,
Pennsylvania; Doylestown Hospital, Doylestown, Pennsylvania;
Metropolitan Hospital, Philadelphia, Pennsylvania; Durham
City Hospital, Durham, North Carolina; Holy Redeemer
Hospital, 2998 Welsh Road, Philadelphia, Pennsylvania; and
Mesa City Hospital, Phoenix, Arizona.
The appellant should be requested to sign and submit
appropriate consent forms to release any private medical
reports to the VA. Any records obtained should be
associated with the claims folder. The RO should exercise
due diligence in attempting to obtain these medical records.
If the addresses of said medical care providers have
changed, the RO should make reasonable attempts to pursue
alternative avenues for securing these records, and the
measures undertaken should be expressly recorded in the
claims folder. In particular, if any of these physicians is
deceased (besides John M. Lawlor, M.D., with an address
during his lifetime at 511 East Gorgas Lane, Philadelphia,
Pennsylvania 19119 and Harry Herman, M.D., with an address
during his lifetime at 1206 Lindley Avenue, Philadelphia,
Pennsylvania), then all reasonable efforts to obtain such
records should be accomplished (e.g., pursuing any leads
regarding transfer of such records to another physician,
records storage company, next of kin, etc.); and the methods
undertaken should be expressly recorded in the claims
folder.
4. The RO should obtain any additional, relevant VA medical
records, including but not limited to, those of VA Medical
Centers in Philadelphia, Pennsylvania, and Wilmington,
Delaware, and associate them with the claims folder.
5. The RO should obtain any relevant medical records
associated with appellant's Social Security Administration
claim (referred to in appellant's statement received in May
1993). Any records obtained should be associated with the
claims folder. The appellant should be requested to sign
and submit appropriate consent forms to release any private
medical reports to the VA.
6. The RO should contact appellant and request him to
provide any relevant employment clinical records (such as
employment physical examinations) that he may have in his
possession, as well as the complete names and addresses of
any former employers (or places he applied for employment)
that provided him any employment psychiatric
examinations/testing. All available, relevant, actual
clinical records should be obtained from the specified
former or prospective employers, including but not limited
to, the following: Monarch Life Insurance Company,
Springfield, Massachusetts; and the Federal Bureau of
Investigation, respectively (referred to by appellant in the
October 1993 hearing transcript, at T.23). The appellant
should be requested to sign and submit appropriate consent
forms to release any private medical reports to the VA.
7. The RO should schedule the appellant for an examination
by a board-certified or board-eligible psychiatrist to
determine the nature and etiology of any psychiatric
disorder that may be presently manifested. The entire
claims folder should be reviewed by the examiner prior to
the examination. The examiner should express an opinion,
with degree of probability given, as to the approximate date
of onset of appellant's bipolar disorder or any other
acquired psychiatric disorder that may be present. The
examiner should adequately summarize the relevant medical
history and clinical findings, and provide detailed reasons
for the medical conclusions. The examiner should comment
upon the clinical significance, if any, of appellant's
nervousness recorded in service, the diagnosis of emotional
instability rendered by Dr. Lawlor in October 1954 (e.g.,
whether this represents a personality disorder versus an
acquired psychiatric disorder), the clinical findings and
diagnoses contained in the October 1957 VA neuropsychiatric
examination report, and appellant's sworn testimony at a
December 1985 hearing on appeal that the first psychiatrist
he had seen after Dr. Lawlor had been in 1966. If these
matters cannot be medically determined without resort to
mere conjecture, this should be commented upon in the
report.
In order to avoid undue delay in this case, the RO should
make certain that the instructions contained in this REMAND
decision, detailing the requested development, have in fact
been substantially complied with. When this development has
been completed, and if the benefit sought is not granted,
the case should be returned to the Board for further
appellate consideration, after compliance with appropriate
appellate procedures, including issuance of a supplemental
statement of the case. No action by the appellant is
required until he receives further notice. The Board
intimates no opinion, either legal or factual, as to the
ultimate disposition warranted in this case, pending
completion of the requested development.
HOLLY E. MOEHLMANN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 38
C.F.R. § 20.1100(b) (1994).
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